SJ 302 and HJ 578 Virginia's "Fourth Amendment" for the 21st Century

(January 26 substitute. Bold underline means new language.)

"The Fourth Amendment is what separates America from a police state."

"[F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas ("persons, houses, papers, and effects") it enumerates . . . [and the] reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." From the majority opinion in U.S. v. Jones, 565 U.S. ___ (2013).

Sentence 1 "That the government shall not violate the right of the people to be secure against unreasonable searches and seizures of their persons, houses, businesses, lands, papers, and effects, including communications and information and data."

Besides "persons, houses, papers and effects" from James Madison's original version, the proposed amendment expressly incorporates protections for (1) businesses, (2) lands, and (3) modifies the expressly protected property to include communications and information and data."

Merchants and business were always presumed to be covered by the Fourth Amendment.

The Fourth Amendment has been construed to protect curtilage (land immediately surrounding the house).  Given expansion of government's administrative reach and land surveillance since adoption of the Fourth Amendment, it is appropriate to include land in this 21st century amendment to Virginia's Constitution. Government should not use drones to snoop on us or our backyards and pastures.

Virginians' technological property and privacy need this protection not currently provided under the Fourth Amendment.

Sentences 2 and 3 "A reasonable search or seizure is one based on probable cause that a law has been or will be broken, or under imminent or exigent circumstances, when police have an objective, reasonable suspicion of a violation of law that jeopardizes persons or property. An unreasonable search or seizure includes one that is not based on a valid law."

Sentence 2 provides greater particularity than the Fourth Amendment in order to aid the more predictable and consistent interpretation and application of the Virginia amendment by clarifying what is meant by "probable cause" in the context of what constitutes a reasonable search or seizure.   

The change will ensure no interference with DUI or other reasonable stops, seizures or searches where a police officer's safety, or that of other persons or property, is subject to immediate threat.  This is consistent with current court interpretation, including Terry v. Ohio, 392 U.S. 1 (1968).

Sentence 3 clarifies that unreasonable searches and seizures include those not based on enforcing a valid law, and overrules Heien v. North Carolina saying mistakes of law are reasonable.   Heien v. North Carolina, No. 13-604, December 15, 2014. In light of the Heien ruling, the amendment would provide Virginians greater protection than under the Fourth Amendment as it relates to mistakes of law, whether intentional, reckless or unknowing. 

Sentence 4 "Warrants and other writs or written demands for searches or seizures shall be issued only based upon probable cause, signed by a neutral judge or magistrate, supported by oath or affirmation, and particularly describing the place to be searched, the persons, property, or things to be seized, or the communications, information, or data to be accessed or obtained."

This sentence confirms that warrants and other writs such as administrative subpoenas or demands must be signed by a neutral judge or magistrate.  Just as our police and sheriff departments may not unilaterally sign and issue warrants to enter one's home or search private property -- and police often operate under emergency, "exigent" and heroic circumstances -- administrative agencies must present probable cause under oath and affirmation to a neutral judge or magistrate to obtain an administrative search or seizure subpoena.  This helps ensure the objectivity that maintains our security and rights from unreasonable searches and seizures, and is part of the "separation of powers" underlying the Fourth Amendment.  The change to "written demands" ensures clarity that does not prohibit police from requesting breathalyzer tests.

Sentence 5  "A person's disclosure of papers, effects, communications, information, or data to another person shall not alone constitute a waiver of this right."

This sentence will eliminate what is known as the "third-party doctrine" for the digital age, where the sharing of communications and private information and data is now an everyday occurrence.  People now use technology to communicate and share information that at the time the Fourth Amendment was ratified would occur in private meetings, their living rooms, and in other venues with an expectation of privacy.

Sentence 6  "The people shall have the remedy of exclusion in judicial and administrative hearings, and such remedy shall not be construed to prohibit traditional remedies for harm or trespass to persons, property, or constitutional rights."

"Ubi jus ibi remedium " is Latin for the legal maxim, "where there is a right, there must be a remedy."

One remedy for violation of the right of Americans to be secure from unreasonable searches and seizures known as the "exclusionary rule" has been part of American jurisprudence since 1914, and has been applied in state courts since 1961.

The exclusionary rule is constitutionally confirmed as available in administrative hearings for agency searches and seizures. 

The right to the remedy of exclusion expressly stated in this amendment shall not be construed to the exclusion of extant traditional remedies to protect the security of persons or the property covered by this amendment, and constitutional rights under Bivens actions, which does not expand, but is consistent with, current law.